Excerpt:.....is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section..........defendant no. 4 together. on the allegation that defendant no. 4 and defendant no. 4 (sic) filed a rent suit for recovery of rs. 11.19 by way of arrears of rent while nothing was due and in the said rent suit a decree was obtained by suppressing summons and the holding was put to sale also without issuing proper notices to the plaintiff who was a judgment-debtor and the plaintiff came to know about the auction sale only when it was about to be confirmed and, therefore, made the deposit to satisfy the decree, the present suit for contribution was filed. the plaintiff claimed recovery of rs. 245.33.3. the defence taken by defendants 1 and 2 was that they had paid their share to the plaintiff; the plaintiff was aware ol the suit and was also in the know of the subsequent execution.....

Judgment:

R.N. Misra, J.

1. The plaintiff is in appeal against a confirming judgment of the learned 5th Additional Subordinate Judge, Cuttack, in a suit for contribution against defendants 1 and 2.

2. The plaintiff and defendants 1 and 2 who are his nephews were in possession of a homestead land to the extent of 12 decimals. In a partition the property and rent (sic) was being paid to defendant No. 4 together. On the allegation that defendant No. 4 and defendant No. 4 (sic) filed a rent suit for recovery of Rs. 11.19 by way of arrears of rent while nothing was due and in the said rent suit a decree was obtained by suppressing summons and the holding was put to sale also without issuing proper notices to the plaintiff who was a judgment-debtor and the plaintiff came to know about the auction sale only when it was about to be confirmed and, therefore, made the deposit to satisfy the decree, the present suit for contribution was filed. The plaintiff claimed recovery of Rs. 245.33.

3. The defence taken by defendants 1 and 2 was that they had paid their share to the plaintiff; the plaintiff was aware ol the suit and was also in the know of the subsequent execution proceeding and had intentionally defaulted to make the payment; the rent suit was filed and the execution was taken on account of the default of the plaintiff and in the circumstances the plaintiff is not entitled to sue for contribution.

4. The trial court found that the default to pay arose out of a common wrong of all the parties, that is, the plaintiff and defendants 1 and 2, and in that view of the matter the plaintiff being one of the joint wrongdoers was not entitled to sue for contribution. The trial court also found that a major portion of the claim was also barred by limitation on the date of the suit. On these findings the suit was dismissed. On appeal the lower appellate court affirmed the decree of the trial court. The Second Appeal is directed against the appellate judgment.

5. Three questions are raised by Mr. Das, appearing for the plaintiff-appellant. They are :--

(1) In view of the findings recorded by the Rent Suit Officer in the execution proceeding it must be held that defendants 1 and 2 had colluded with defendant No. 4. The finding in the said case being inter partes is res judicata for the present suit. Therefore, the courts below went wrong in not relying upon the findings of the Rent Suit Officer and accepting the same on the basis of res judicata.

(2) The theory of joint wrong-doers being entitled to sue for contribution is not applicable in India as has been held by a Full Bench AIR 1951 All 774 (FB) Dharni Dhar v. Chandra Shekhar and, therefore, the trial court as also the court of appeal below went wrong in relying upon the decision of the Patna High Court in AIR 1936 Pat 49 Bishambhardeo Narayan Singh v. Hitnarayau Singh to hold that the suit was not maintainable.

(3) No part of the claim in the suit was barred by limitation and the courts below went wrong in negativing his claim on the question of limitation.

Each of the points needs examination.

6. There is some allegation in the plaint that defendants 1 and 2 had colluded with defendant No. 4. But in the present suit there is absolutely no evidence to support the allegation of collusion. The question raised is that there having been a finding recorded by the Rent Suit Officer in the execution proceeding, such finding is available to be used in the present suit and the defendants are barred by res judicata from disputing the position. The application filed before the Rent Suit Officer is not before us. The said order of the Rent Suit Officer which has been exhibited in the case states that the application before him was under Sees. 227 and 228 of the Orissa Tenancy Act. Section 227 admittedly would have no application to the facts of the case. Under Section 228 there are two sub-sections and subsection (1) covers certain cases where auction sale has to be set aside while Sub-section (2) refers to another set of cases where the same relief can be obtained. The relief ultimately granted in the case, as that order would show, is that the sale was vacated on accepting the entire decretal dues in satisfaction. Such an order fits in with the scheme of the Statute in Sub-section (1) of Section 228 and does not comply with the requirements of Sub-section (2) of Section 228 of the Orissa Tenancy Act. In view of the final direction given in the said order, it must be taken to be one coming within the meaning of Section 228 (1) of the Act. If it was a case covered by Section 228 (1), the question of fraud had not to be gone into, and there-fore, cannot be said to have been in issue before the court for disposing of the application.

7. Then there is no evidence that the other two judgment-debtors, who are defendants 1 and 2 here, were appearing before the Rent Suit Officer. The plaintiff's case was that there was suppression of summons. There is no other material excepting the two references in the order sheet to a judgment-debtor appearing in the proceeding and asking for time to pay the decretal dues. Mr. Das contends that since it is the plaintiffs case that he for the first time came to know about the rent suit and its execution at a time when the sale had taken place, reference to some judgment-debtor without specifying the same must be by necessary application referring to either defendant No. 1 or defendant No. 2. By this process of elimination, to conclude that one of these two defendants had already appeared in the rent suit or its execution would be drawing an inference not available directly from the facts and I would be slow to do it. Therefore, I would hold that the matter before Bent Suit Officer was under Section 228 (1) of the Orissa Tenancy Act and the question of fraud or collusion was not in issue. These two defendants had not participated in the proceeding and until it was shown that they had notice of the case it must equally be taken that they were not parties who had been heard or had been given an opportunity to be heard and had not availed of it and, therefore, any decision taken by the Rent Suit Officer cannot be res judicata against them. The first point raised by Mr. Das fails.

8. His next contention is that the principle of joint wrong-doers not being entitled to sue for contribution is not available in India. The Full Bench case in AIR 1951 All 774 refers to two Patna decisions in AIR 1919 Pat 165, Mahabir Prasad v. Darbhangi Thakur and AIR 1936 Pat 49 referred to above. In the first case, Chief Justice Daw-son-Miller sitting with Adami, J. held that the exception as noted above applies to India. They also took into consideration the case of Merryweather v. Nixon, (1799) 101 ER 1337 and came to hold that the principle laid down therein was applicable to India. In the Allahabad case while two learned Judges took the view that the rule was not applicable to India Mr. Justice Agarwala did not agree to it.

9. In view of the facts that the Patna High Court has consistently taken the view indicated above, I would prefer to follow the rule in the Patna decisions in preference to that indicated in the Allahabad decision and conclude that a joint wrong-doer is not. entitled to sue for contribution is applicable1 to India. In view of the finding already recorded by the courts below that the plaintiff was a joint wrong-doer in not paying the rent due and a further finding that the rent was actually due and had been properly sued for in the rent suit, I would hold that the plaintiff is not entitled to sue for contribution.

10. This leads to the ultimate question for determination relating to limitation. In view of the findings already recorded, limitation is not material to be decided. But since Mr. Das contended that there was no limitation I am prepared to examine the said question. It is admitted that a part of the payment was made on 15-6-60 and the suit was filed on 11-5-63 within 3 years from the date of the last payment. Mr. Das's contention is that the payment which the plaintiff made was only a deposit in the custody of the court and until it was directed to be appropriated and was in fact appropriated by the auction purchaser the money was still his though in the custody of the Court. It was open to the plaintiff in the present suit not to press his application in the rent execution proceeding and on his withdrawing the application in the said execution proceeding the money was available to be refunded to him. There can be no dispute to such a position. Therefore, until there was actual appropriation the question of limitation cannot be raised. Since the order of appropriation was made on 15-6-60 only and the suit is within -3 years from that date, the question of limitation must be decided in favour of the plaintiff. The courts below went wrong in holding that the suit was out of time.

11. On the aforesaid analysis, there is no merit in the Second Appeal and the suit has been rightly dismissed in the courts below. The Second Appeal is dismissed. Parlies will bear their own costs throughout.